Louisiana Divorce Reform: For Better or For Worse?

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LLoouuiissiiaannaa LLaaww RReevviieeww
Volume 50
Number 5 Family Law Symposium Article 4
May 1990
5-1-1990
LLoouuiissiiaannaa DDiivvoorrccee RReeffoorrmm:: FFoorr BBeetttteerr oorr FFoorr WWoorrssee??
Stephanie Bienvenu Laborde
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Stephanie Bienvenu Laborde, Louisiana Divorce Reform: For Better or For Worse?, 50 La. L. Rev. (1990)
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Louisiana Divorce Reform: For Better or For Worse?
I. INTRODUCTION
Eight years ago, the Louisiana State Law Institute began to draft
a revision of Louisiana's marriage and divorce laws. As a result of this
effort, the Law Institute submitted proposed legislation' to the State
Legislature in 1987.2 Although the Legislature adopted the revisions to
the marriage section, it defeated the divorce provisions. Those provisions
were reintroduced and again defeated in 1988. 3 Despite subsequent
amendments designed to make the revision more politically acceptable,
the Legislature again refused to adopt the changes in 1989. 4 The Mar-
riage-Persons Committee of the State Law Institute, in cooperation with
the Joint Legislative Committee on Divorce and the Legislature's Civil
Law and Procedure Committee, has further revised the working draft,
and a significantly transformed bill will be introduced in 1990.
The primary thrust of the divorce reforms has been to remove the
issue of fault from the proceedings necessary to obtain a divorce. In
the proposed version, fault is an issue only as it relates to one's eligibility
to receive alimony. Consequently, the issue of fault will not have to be
litigated if the parties agree that one of them will pay alimony to the
other, or that neither will receive alimony.
The procedure itself has also been significantly simplified in the
revision. In lieu of the current approach requiring that the spouses live
separate and apart in all but the most egregious of circumstances,' under
the new proposal one party could immediately file a petition for divorce.
After a six-month period of living separate and apart, that party could
file a motion for final divorce. 6 Absent a reconciliation between the
parties, there would be no "defense" to this action.
Copyright 1990, by LOUSILANA LAW REVIEW.
1. The revision involves Book I, Of Persons; Titles IV, Husband and Wife; and V,
Of Separation From Bed and Board and of Divorce, of the Louisiana Civil Code.
2. H.R. 1139, 13th La. Leg., Reg. Sess. (1987).
3. H.R. 847, 14th La. Leg., Reg. Sess. (1988).
4. H.R. 336, 15th La. Leg., Reg. Sess. (1989).
5. La. Civ. Code art. 139, infra note 25.
6. Only the plaintiff may move for such a judgement. Proposed La. Civ. Code art.
102, infra note 48. However, the defendant spouse may protect his right to do so by
filing his own divorce action. The declinatory exception of lis pendens is not available
to the plaintiff to have the defendant's suit dismissed, under Proposed La. Code Civ. P.
art. 3957, which expressly permits the filing of such a suit.
LOUISIANA LA W REVIEW [Vol. 50
This article will discuss Louisiana's current divorce law and how
divorcing couples, family law practitioners, and the courts apply it. It
will then summarize the Law Institute's purposes and processes in draft-
ing the revision and analyze the proposed revision. This analysis will
focus on the elimination of fault as an issue in divorce proceedings and
provide a general overview of the changes it makes in current law. Next,
examples are given of the abuses that have resulted from the application
of fault in Louisiana divorce proceedings. Some of the problems resulting
from the elimination of fault in "pure" no-fault divorce states7 follows.
In conclusion, the two approaches are considered to determine which
provision seems to be the better alternative.
II. CURRENT LoUISIANA DIVORCE LAW AND PRACTICES
Louisiana's law of divorce, like that of most of its sister states, is
grounded in ecclesiastical or canon law.8 Historically, this foundation
resulted in a virtual ban on divorces, based on the religious concept of
"'til death us do part." Where divorces were allowed, they could be
based only on religiously-sanctioned grounds and then were only ob-
tainable by the "innocent" party.9 As the bulk of divorce law evolved
away from these religious tenets, the concept of fault-based divorce
remained.
Originally, in the United States, divorces could only be granted by
individual statute. Such a statute was applicable to only one couple at
a time, much like early corporation statutes. 0 As divorce became more
common, however, "legislatures recognized the need for an efficient
way to dissolve a marriage."" There were no easy solutions, because
the legislatures had to balance conflicting societal demands. "One was
a demand that the law lend moral and physical force to the sanctity
and stability of marriage. The other was a demand that the law permit
people to choose and change their legal relations.' 2
During the 1970's, state lawmaking bodies nationwide began to
recognize that the concept of fault as it relates to divorce did not
accurately reflect typical marital breakdowns. Divorce practitioners and
social scholars have found, on the contrary, that isolated, cataclysmic
7. For a definition of a "pure no-fault" divorce law, see infra note 44.
8. L. Wardle, C. Blakesley and J. Parker, Contemporary Family Law: Principles,
Policy and Practice § 1:01-03 (1988); Note, Ecclesiastical Law: How Far Adopted in the
United States, 30 Harv. L. Rev. 283 (1917).
9. Wadlington, Divorce Without Fault Without Perjury, 52 Va. L. Rev. 32, 35-37,
40 (1966); L. Wardle, C. Blakesley and J. Parker, supra note 8, at §§ 17.02, 19.01.
10. Friedman, Rights of Passage: Divorce Law in Historical Perspective, 63 Or. L.
Rev. 649, 651-53 (1984).
11. Id. at 653.
12. Id.
1990] FAMILY LA W SYMPOSIUM
events seldom end marriages. 3 Most marriages deteriorate over long
periods of time.' 4 The decision to divorce is usually made incrementally,
and the parties seldom fit into the simple categories of totally innocent
or exclusively "at-fault."'" As this pattern became clear, states began
to adopt laws allowing for divorce based on living "separate and apart"
for an established period of time, or other "no-fault" grounds. 16 Today,
all states have adopted some form of "no-fault" divorce.' 7
There are important public policies supporting the requirement of
proof of fault for a party to obtain a divorce in less than one year.
Mandating a one-year "cooling off" period in the absence of egregious
fault prevents hasty or ill-considered terminations of marriages, provides
for more stable family relationships, extends economic support of the
continuing family unit, and protects the sanctity of marriage. Lawmakers
are justifiably concerned with the protection, encouragement, and sta-
bilization of marriage. In accord with these important public policies,
states have resisted the total elimination of fault as a consideration
during divorce proceedings.
This objection, however, appears to be based on a false premise.
Few people contemplating divorce know the particular requirements of
their state's divorce laws. They make their decisions for countless in-
definable reasons that have little or nothing to do with the ease or
difficulty of obtaining a divorce. At least two social statistics bring this
to bear: divorce rates remained stable in eighty-seven per cent of the
states adopting simplified procedures or removing fault as a require-
ment;'8 and the duration of marriages remained unchanged before and
after adoption of the no-fault provisions.' 9
Because legal barriers appear to provide little deterrence to the
incidence of divorce, the legal termination of the marriage should be
made as civil as possible. Fault-based divorces force the parties to take
unnecessarily adversarial positions toward one another, thereby lessening
the likelihood of reconciliation and creating unnecessary hostility and
acrimony between parties who are already likely to be emotionally vul-
13. Freed and Foster, Divorce in the Fifty States: An Overview as of 1978, 13 Fam.
L.Q. 105, 107 (1979).
14. Wadlington, supra note 9, at 82.
15. Id. at 40; Carbonneau, Analytical and Comparative Variations on Selected Pro-
visions of Book One of the Louisiana Civil Code With Special Consideration of the Role
of Fault in the Determination of Marital Disputes, 27 Loy. L. Rev. 999, 1018-19 (1981).
16. Freed and Foster, supra note 13.
17. Freed and Walker, Family Law in the Fifty States: An Overview, 21 Fam. L.Q.
417, 440-43 (1988); 20 Fam. L.Q. 439, 460 (1987); 19 Fam. L.Q. 331, 341 (1986).
18. Sepler, Measuring the Effects of No-Fault Divorce Laws Across Fifty States:
Quantifying a Zeitgeist, 15 Fam. L.Q. 65, 88-89 (1981).
19. McGraw, Sterin and Davis, A Case Study in Divorce Law Reform and its
Aftermath, 20 J.Fam. L. 443, 465 (1982).
LOUISIANA LA W REVIEW [Vol. 50
nerable. 20 This is true even when the parties opt to wait a year and
obtain a divorce on no-fault grounds, because of the relevance of fault
to the determinations of alimony2' and child custody.22 In addition, the
inherent tension encompassed in the present system discourages voluntary
settlements.2 3 Given the possibility that removing the fault requirement
may improve relations between divorcing spouses, and the resulting
positive impact on the affected children, Legislatures ought to encourage
civility and cooperation in the divorce process. Removing fault as an
issue would help achieve this goal. 24
In Louisiana, fault-based separations from bed and board and di-
vorces are governed by Civil Code articles 138 and 139. To secure an
immediate divorce requires either proof of adultery on the part of the
other spouse or his conviction of a felony and sentencing to death or
imprisonment at hard labor.25 Alternatively, spouses may obtain a divorce
if they have been living separate and apart for six months without a
reconciliation after having obtained a judgment of separation from bed
and board on grounds specifically listed in Civil Code article 13826 and
20. Id. at 453.
21. La. Civ. Code art. 160 provides that a judicial finding of fault will act as an
absolute bar to that spouse's eligibility for alimony.
22. La. Civ. Code art. 146 C. provides that the presumption that joint custody is
in the best interest of a minor child may be rebutted by a showing of, among other
factors: "(f) The moral fitness of the parties involved. (g) The mental and physical health
of the parties involved. (1) Any other factor considered by the court to be relevant .. "
23. McGraw, Sterin and Davis, supra note 19, at 471; Schiller, Dueling Over the
Issue of Fault: Fault Undercuts Equity, 10 Fain. Advoc. 10(2), 14 (1987).
24. Wadlington, supra note 9; Schiller, supra note 23, at 14-15; Gitlitz, The Case
for a No Fault Divorce Law in New York, 58 N.Y. St. B.J. 2d 28, 31 (1986); L.
Weitzman, The Divorce Revolution 23 (1985).
25. Immediate divorce may be claimed receprocably [reciprocally] for one of the
following causes:
1. Adultery on the part of the other spouse.
2. Conviction of the other spouse of a felony and his sentence to death
or imprisonment at hard labor.
Divorce may be granted to either spouse after a separation from bed and board
in accordance with the provisions of Section 302 of Title 9 of the Louisiana
Revised Statutes of 1950.
La. Civ. Code art. 139.
26. Separation from bed and board may be claimed reciprocally for the following
causes:
1. In case of adultery on the part of the other spouse;
2. When the other spouse has been convicted of a felony and sentenced
to death or imprisonment at hard labor in the state or federal penitentiary;
3. On account of habitual intemperance of one of the married persons,
or excesses, cruel treatment, or outrages of one of them toward the other,
if such habitual intemperance, or such ill-treatment is of such a nature
as to render their living together insupportable;
19901 FAMILY LA W SYMPOSIUM
in Louisiana Revised Statutes 9:302.27 Lastly, spouses may obtain a
divorce when they have been living separate and apart continuously for
at least one year. 28
Obtaining a divorce in Louisiana in less than one year requires proof
of acts sufficient to constitute the required "fault. '29 Even if a couple
4. Of a public defamation on the part of one of the married persons
towards the other;
5. Of the abandonment of the husband by his wife or the wife by her
husband;
6. Of an attempt of one of the married persons against the life of the
other;
7. When the husband or wife has been charged with a felony, and shall
actually have fled from justice, the wife or husband of such a fugitive
may claim a separation from bed and board, on producing proofs to the
judge before whom the action of separation is brought, that such husband
or wife has actually been guilty of such felony, and has fled from justice;
8. On account of the intentional non-support by the husband of his
wife who is in destitute or necessitous circumstances, or by the wife of
her husband who is in destitute or necessitous circumstances.
9. When the husband and wife have voluntarily lived separate and apart
continuously for six months and no reconciliation has taken place during
that time.
10. When the spouses have lived six months separate and apart, voluntarily
and without reconciliation; provided that both spouses shall execute an
affidavit attesting to and testifying that they have so lived separate and
apart and that there exists irreconcilable differences between the spouses
to such a degree and nature as to render their living together insupportable
and impossible. In all such cases, the proceedings shall be entitled "In
the matter of (petitioner) and his (or her) spouse
La. Civ. Code art. 138.
27. A. When there has been no reconciliation between the spouses for a period
of six months or more from the date the judgement of separation from bed
and board was signed, either spouse may obtain a judgment of divorce.
B. If an appeal is taken from a judgment of separation from bed and board,
a suit for divorce may not be commenced until the day after the date upon
which the judgment becomes definitive as provided by Article 1842 of the
Louisiana Code of Civil Procedure or until the expiration of the time stated
in Subsection A of this Section, whichever is later.
C. The right of a spouse to alimony shall not be affected because the other
spouse obtains the judgment of divorce under the provisions of this Section.
D. The provisions of this Section do not affect in any way the right of the
spouse who had obtained the care and custody of the children, as provided by
law, to retain such care and custody.
La. R. S. 9:302 (Supp. 1990).
28. "When the spouses have been living separate and apart continuously for a period
of one year or more, either spouse may sue for and obtain a judgement of absolute
divorce." La. R.S. 9:301 (Supp. 1990).
29. La. Civ. Code arts. 138-139, supra notes 25-26.
1000 0LOUISIANA LA W REVIEW [Vol. 50
is willing to wait more than a year to obtain a divorce based upon the
"no-fault" grounds contained in Louisiana Revised Statutes 9:301,0 the
spouses may have to prove the lack of a reconciliation during the physical
separation.3 Some spouses engage in deceptive behavior such as simu-
lating a heartfelt reconciliation in order to prolong eligibility for alimony
pendente lite or to eliminate the admissabilify of evidence of prior fault.12
Spouses may also engage in such behavior simply to frustrate the wishes
of the party who wants to expedite the divorce.33 Because Louisiana's
no-fault divorce provision requires that the parties live separate and
apart for one year without reconciliation before filing,3 4 the state arguably
encourages such behavior by requiring proof of fault as an essential
element of the cause of action for one to obtain a divorce in less than
one year.
Current law also encourages collusive divorces between those parties
who have mutually agreed to end their marriages, but who want to do
so in less than one year.33 Particularly if one party agrees to pay alimony,
he may agree to take the assignment of fault either to facilitate the
process or in exchange for some concession from the other party. Al-
though the courts do not expressly condone such divorces, they are
often tacitly endorsed as long as the agreement does not violate equity.3 6
III. THE EVOLUTION OF THE REVIsIoN
As directed by the Louisiana Legislature, the Louisiana State Law
Institute 7 is pursuing an ongoing revision of the Louisiana Civil Code.3"
30. La. R.S. 9:301 (Supp. 1990), supra note 28.
31. See, e.g., Millon v. Millon, 352 So. 2d 325 (La. App. 4th Cir. 1977); Stewart
v. Stewart, 175 So. 2d 692 (La. App. 1st Cir. 1965).
32. See, e.g., Hickman v. Hickman, 218 So. 2d 48 (La. App. 3d Cir.), writ denied,
253 La. 879, 220 So. 2d 460, reh'g denied, 227 So. 2d 14 (La. App. 3d Cir. 1969);
Jordan v. Jordan, 394 So. 2d 1291 (La. App. 1st Cir. 1981).
33. See, e.g., Humes v. McIntosh, 225 La. 930, 74 So. 2d 167 (1954).
34. La. R.S. 9:301 (Supp. 1990), supra note 28.
35. See, e.g., Collins v. Collins, 485 So. 2d 956 (La. App. 5th Cir.), writ denied,
488 So. 2d 203 (1986). See also Clark, Marital Privacy: New Remedies for Old Wrongs,
16 Cumb. L. Rev. 229, 232 (1986).
36. Friedman, supra note 10, at 659-61; Brinig and Carbone, The Reliance Interest
in Marriage and Divorce, 62 Tul. L. Rev. 855, 896-97 (1988).
37. The Louisiana State Law Institute was created in April of 1938 at the Louisiana
State University Law School. Later that year, the Louisiana Legislature officially recognized
and funded the Institute as "an official advisory law revision commission, law reform
agency and legal research agency of the State of Louisiana." La. Acts 1938, No. 166 §
1, subsequently codified at La. R.S. 24:201-208 (1989) (enacted in 1938).
38. The fundamental purpose of the Institute, as stated by the Legislature in the act
that created it, is "to promote and encourage the clarification and simplification of the
law of Louisiana and its better adaptation to present social needs; to secure the better
administration of justice and to carry on scholarly legal research and scientific legal work."
La. R.S. 24:204 (1989).
1990] FAMILY LA W SYMPOSIUM
The revision of this state's marriage and divorce laws is only a part of
this larger endeavor.
The Institute's Marriage-Persons Committee began the revision of
the provisions relating to marriage in October of 1981, and began
consideration of the divorce provisions in 1984. This Committee is
comprised of a retired supreme court justice,3 9 two family law judges, 40
six law professors4' and three family law practitioners. 42 The combined
breadth of their knowledge of this subject makes their recommendations
highly persuasive authority for the positions espoused.
The Committee has met approximately four times annually during
this eight-year period and has integrated the recommendations not only
of its members, but also of the Joint Legislative Study Committee on
Divorce and the Legislature's Civil Law and Procedure Committee. The
Reporter has stated the Institute's goals in this project as follows, in
their order of priority:
1. The law should recognize that, because marriage is a personal
relationship entered into for complex personal and social reasons,
39. Honorable Fred A. Blanche, Jr., Justice, Louisiana Supreme Court (1979 to
1986); Judge, Louisiana First Circuit Court of Appeal (1969 to 1979); Judge, Louisiana
Nineteenth Judicial District Court (1960 to 1969).
40. Honorable E. Donald Moseley, Chief Judge, East Baton Rouge Parish Family
Court (1972 to present) and Honorable Anthony J. Graphia, Judge, East Baton Rouge
Parish Family Court (1978 to present), who is no longer a member of the Committee.
41. Katherine Shaw Spaht, Jules and Frances Landry Professor of Law, Paul M.
Hebert Law Center, Louisiana State University, who serves as the Reporter for the revision
of this section of the Civil Code; J.D., Paul M. Hebert Law Center, Louisiana State
University (1971).
Christopher L. Blakesley, Professor of Law, Paul M. Hebert Law Center, Louisiana
State University; J.S.D., Columbia University School of Law (1985); LL.M., Columbia
University School of Law (1976); J.D., University of Utah College of Law (1973); M.A.,
the Fletcher School of Law and Diplomacy (1970).
Thomas E. Carbonneau, Professor of Law, Tulane University School of Law; Deputy
Director of the Eason-Weinmann Center for Comparative Law; J.S.D., Columbia Uni-
versity School of Law (1984); LL.M., Columbia University School of Law (1979); M.A.,
University of Virginia (1979); M.A., Oxford University (1979); J.D., University of Virginia
(1978); A.B., Bowdoin College (1972); Dipl6me Sup~rieur d'Etudes Franqaises, Universit6
de Poitiers (1971).
Jeanne Carriere, Associate Professor of Law, Tulane University School of Law; J.D.,
Tulane University School of Law (1986); Ph.D., University of California at Los Angeles
(1975); M.A., University of California at Los Angeles (1972).
Kathryn V. Lorio, Professor of Law, Loyola University School of Law; J.D., Loyola
University School of Law (1973).
Cynthia Samuel, Professor of Law, Tulane University School of Law; J.D., Tulane
University School of Law (1972).
42. Eavelyn T. Brooks, Attorney at Law, Bastian and Wynne; Philip R. Riegel, Jr.,
Attorney at Law, Parlongue and Riegel; and Kenneth Rigby, Attorney at Law, Love,
Rigby, Dehan, McDaniel and Goode.
1002 2LOUISIANA LA W REVIEW [Vol. 50
the parties to a marriage are in the best position to know when
it has ceased to serve its intended purposes.
2. Dissolution of marriage should be as amicable as possible,
and the law should encourage civility in dissolution actions by
making them non-adversarial in nature.
3. The law should promote reconciliation between spouses by
imposing a reasonable waiting period in all divorce actions.
4. The law should seek to avoid the adverse effects on the
judicial system occasioned by fault-based and complex no-fault
schemes.
5. The law should encourage spouses to resolve the incidents of
dissolution of marriage between themselves whenever possible.
6. Simple divorce procedures should be available in simple cases
in order to insure that everyone has access to the courts in this
area .43
These policies are too important to be easily dismissed. Countervailing
concerns are often justified in the name of "pro-marriage." However,
these positions are not necessarily mutually exclusive, or even incom-
patible. This proposed revision is considered by many to be a step
toward a more civilized social structure." In addition, progress in this
direction is probably inevitable as divorce laws nationwide are developing
4
similarly.
IV. PROPOSED LAW: MAJOR PROVISIONS4
The proposed revision of Louisiana's divorce law is more similar
to than it is different from current law. Most of the changes make
Louisiana law conform more closely to comparable provisions in those
states whose divorce laws seem to protect the interests of the parties
and their children better than under current Louisiana law. The revision
43. K. Spaht, From the Reporter: Policy Considerations Governing the Divorce Re-
vision, 4-5 (May 10, 1985) (document prepared for the meeting of the council).
44. Seventeen years after the passage of the first "pure" no-fault divorce law in the
United States, one analysis concludes that California law has continued to be an im-
provement over its earlier fault-based system. (A "pure" no-fault divorce law is one that
removes considerations of marital fault from the grounds for divorce, the award of spousal
support and the division of property.) Kay, An Appraisal of California's No-Fault Divorce
Law, 75 Calif. L. Rev. 291 (1987).
45. Freed and Walker, supra note 17.
46. For purposes of this section, this article will refer to provisions of 1989 House
Bill No. 336, supra note 4. This bill has been significantly amended by the Marriage-
Persons Committee of the Law Institute, and will be changed further before it is resubmitted
to the Legislature in 1990, but this is the last publicly-available version of the proposed
revision.
19901 FAMILY LA W SYMPOSIUM 1003
attempts to eliminate unnecessary obstacles to divorce while allowing
the courts sufficient authority to do justice between the parties.
The most striking difference from current law in the Institute's
proposal is the elimination of fault as a ground for divorce, except for
a continuation of the provision allowing an immediate divorce upon
proof of adultery or a felony conviction and sentencing of the other
spouse. In every other circumstance, divorce would become available to
either party after a spouse files a petition for divorce47 and a six-month
waiting period has elapsed,4 or after having lived separate and apart
for one year.49 The final decree would be obtainable by rule rather than
by trial. 0 The proposed procedures should make the proceedings simpler
and reduce acrimony by eliminating fault as a consideration for the
divorce itself and lessening the adversarial and often prurient nature of
the proceedings.
Regrettably, however, the revision has not completely eliminated the
issue of fault. Fault of one spouse would no longer be an absolute bar
to eligibility to receive permanent alimony (called "support" in the
revision).5' Rather, the court would consider the relative fault of both
parties to determine "comparative marital misconduct" 2 in awarding
support. Under this analysis, the party more at fault, or the one who
has committed the more egregious fault, or the extent of the provocation
one party endured before engaging in behavior technically characterized
as "fault," would all be relevant in the ultimate determination of the
47. See supra note 6.
48. A divorce shall be granted upon motion of a spouse when that spouse has
filed a petition for divorce and one hundred eighty days have elapsed from the
service of the petition.
The motion shall be a rule to show cause filed after the one hundred eighty
days have elapsed.
Proposed La. Civ. Code art. 102.
49. "A divorce shall be granted on the petition of either spouse upon proof that
the spouses have been living separate and apart continuously for a period of one year
or more." Proposed La. Civ. Code art. 103.
50. Proposed La. Civ. Code art. 102, supra note 48, and:
The rule to show cause provided under Civil Code Article 102 shall allege proper
personal service of the initial petition for divorce and shall state that one hundred
eighty days or more have elapsed since that service. The rule to show cause
shall be verified by the mover, and shall be accompanied by an affidavit,
executed more than one hundred eighty days after the service of the original
petition, stating that the affiant still desires to be divorced.
Proposed La. Code Civ. P. art. 3953.
51. Proposed La. Civ. Code arts. 104-111.
52. "The term 'marital misconduct' as used in this Article means any substantial act
or omission that violates a spouse's marital duties or responsibilities." Proposed La. Civ.
Code art. 106. This language is based on the Louisiana Supreme Court's definition of
fault in Felger v. Doty, 217 La. 365, 46 So. 2d 300 (1950), as cited in Smith v. Smith,
216 So. 2d 391, 394 (La. App. 3d Cir. 1968).